SF city attorney calls state bail schedule unconstitutional, announces he won’t defend it

Prisoners in the San Francisco County Jail taking a college-level child development course are no doubt benefitting, but most are probably mothers who would, along with their families, benefit far more if they were home with their children. Note how many are Black – in a city where so many Black families have been pushed out that their population has dropped to about 3 percent. Bail discriminates not only by income level but also by race. – Photo: Michael Ares, SF Examiner

Current pre-arraignment bail system discriminates against the poor without improving safety

by John Coté

San Francisco – City Attorney Dennis Herrera declared that the state’s current bail system is unconstitutional, and, in a court filing, Herrera said he will not defend the bail system in a federal class-action lawsuit brought by a national civil rights group against San Francisco’s sheriff.

Herrera is specifically pointing to California’s pre-arraignment bail system, where defendants able to pay a set amount can buy their freedom, regardless of the safety or flight risk they pose. Less affluent people are forced to remain in jail as they attempt to gain their release in other ways.

“That creates a two-tiered system: one for the those with money and another for those without,” City Attorney Dennis Herrera said. “It doesn’t make anybody safer. It’s not right, and it’s not in keeping with our Constitution. It’s time for it to stop. To echo U.S. Attorney General Loretta Lynch, we need to ensure that in the United States there is no price tag on justice.”

“To echo U.S. Attorney General Loretta Lynch, we need to ensure that in the United States there is no price tag on justice,” City Attorney Dennis Herrera said.

Welcoming the announcement, San Francisco Public Defender Jeff Adachi said: “I applaud the City Attorney’s decision not to defend the lawsuit, and his determination that San Francisco’s money bail system is unconstitutional. The practice of jailing the poor and people of color simply because they cannot afford bail is indefensible and violates the presumption of innocence and our country’s commitment to equal justice for all.”

In California, people arrested on suspicion of a crime are generally held in jail until they appear before a magistrate unless they can pay a set amount of money as collateral. Those amounts are laid out in what’s called a bail schedule, and state law requires that superior court judges in each county establish one.

State law also requires that sheriff departments enforce the bail schedule. If an arrestee can pay the amount on the bail schedule (using their own money or paying a bail bondsman), they can get out of jail, regardless of whether they pose a danger to the community.

If they can’t pay the bail amount, they stay in jail until a court grants them release – if at all – even if they are not a danger or a flight risk. Herrera is taking legal issue with the bail process that exists prior to arraignment, when a judge or judicial officer has not had the opportunity to review the circumstances and make an individualized bail determination based on all factors.

Herrera noted that the current bail system has steep costs.

“Keeping people locked up for no reason other than they can’t afford to post bail can have far-reaching consequences,” Herrera said. “People lose their jobs and their homes. Families fall apart. Taxpayers shoulder the cost of jailing people who don’t need to be there. In other words, the current bail system is not just unconstitutional, it’s bad public policy.”

“People lose their jobs and their homes. Families fall apart. Taxpayers shoulder the cost of jailing people who don’t need to be there. … How much money someone has isn’t a measure of whether they pose a threat.”

“To be clear,” Herrera added, “dangerous people who pose a risk to the community need to remain incarcerated. But how much money someone has isn’t a measure of whether they pose a threat.”

Series of lawsuits

A Washington D.C.-based national civil rights group, Equal Justice Under Law, filed a federal class-action lawsuit in U.S. District Court for the Northern District of California on Oct. 28, 2015, alleging that the California bail system is unconstitutional.

The lawsuit was first filed against the state and the city. Sheriff Vicki Hennessy, who oversees the City and County of San Francisco’s jails, was later added as a defendant, and the court dismissed the claims against the state and the city. The City Attorney’s Office is the sheriff’s legal counsel.

The suit contends the state’s money-based bail schedule unfairly allows the wealthy to go free while the poor are forced to remain in jail. Wealthier defendants can put up their full bail amount and get it back when they show up in court. According to the suit, that difference constitutes wealth-based discrimination unrelated to public safety and violates constitutional rights to due process and equal protection of the law.

The lawsuit was one in a series filed around the country challenging bail practices. As a result, smaller cities in Alabama, Kansas, Missouri, Mississippi and Louisiana have reformed their municipal bail practices.

The San Francisco lawsuit was one in a series filed around the country challenging bail practices. As a result, smaller cities in Alabama, Kansas, Missouri, Mississippi and Louisiana have reformed their municipal bail practices.

The lawsuits are part of a growing national conversation about the bail system. In Georgia, the U.S. Department of Justice in August filed a legal brief supporting a 54-year-old indigent man, Maurice Walker, who was arrested for being a pedestrian under the influence. Walker had sued after he was kept in jail for six nights because he was unable to pay $160 in bail.

Maryland Attorney General Brian Frosh recently sent an advisory letter to his state’s lawmakers urging a change to bail practices because they were likely unconstitutional. Voters in New Mexico will decide on Nov. 8 whether to change the state Constitution to prevent detaining arrestees who are not dangerous or a flight risk “solely because of financial inability to post a money or property bond.”

In the last week of October, California Supreme Court Chief Justice Tani G. Cantil-Sakauye announced the formation of a Pretrial Detention Reform Work Group to study the state’s current practices and provide recommendations for potential reforms.

While other government entities have taken steps to reform money bail systems, the City Attorney’s Office appears to be the first to refuse to defend a state bail system in court.

City attorney takes position on bail law

The City Attorney’s Office had not taken a position on the validity of the state bail law until this announcement, made earlier this month.

Since the lawsuit was filed, the City Attorney’s Office has worked diligently to clarify both the plaintiffs’ legal arguments and what they were seeking through the lawsuit before taking a position. Herrera also worked hard to protect San Francisco taxpayers from any monetary damages that might result from carrying out a state law. That has been achieved.

An Oct. 14, 2016, ruling by U.S. District Court Judge Yvonne Gonzalez Rogers agreed that the sheriff was acting on behalf of the state, rather than San Francisco, when enforcing the bail schedule, so there is no liability for the city in that context. The court also held that, as a state actor, the sheriff is entitled to immunity from suit for money damages under the 11th Amendment of the Constitution, which provides states with broad protection from lawsuits.

The key question remaining before the court is: Is the state’s bail schedule unconstitutional?

In his court filing, Herrera’s office said: “This two-tiered system of pretrial justice does not serve the interests of the government or the public and unfairly discriminates against the poor. It transforms money bail from its limited purpose in securing the appearance of the accused at trial into an all-purpose denial of liberty for the indigent.

“This two-tiered system of pretrial justice does not serve the interests of the government or the public and unfairly discriminates against the poor. It transforms money bail from its limited purpose in securing the appearance of the accused at trial into an all-purpose denial of liberty for the indigent,” Herrera told the court.

“The sheriff is required to enforce the state’s law, and she will, unless and until its unconstitutionality is established in the courts. But she is not required to defend it, and she will not.”

Better bail systems

Congress passed the Bail Reform Act of 1966, which abolished the use of bail conditions that discriminate against indigent arrestees in the federal system. The federal courts use a risk-based model, detaining only those people who are either a flight risk or a danger to others. There can be conditions on release – like providing a DNA sample, restrictions on travel, or a curfew – but bail cannot be set in an amount a person can’t afford.

Washington, D.C., has a similar risk-assessment system, which figures show has been both safe and effective. In fiscal 2015, for example, 98 percent of released defendants were not subsequently arrested for a violent crime during their pretrial release, and 88 percent made all scheduled pretrial court appearances.

States, however, have not necessarily followed suit. A December 2015 report by the White House Council of Economic Advisors found that restrictive bail policies helped lead to a surge in pre-trial prisoners being held without conviction, with the number growing by 59 percent between 1996 and 2014.

A report this year by the non-profit, non-partisan Prison Policy Initiative found that there are 646,000 people locked up in more than 3,000 local jails throughout the United States. According to the report, 70 percent of these people in local jails are being held pretrial — meaning they have not yet been convicted of a crime and are legally presumed innocent.

Prison Policy Initiative found that there are 646,000 people locked up in more than 3,000 local jails throughout the United States … 70 percent … have not yet been convicted of a crime and are legally presumed innocent.

As the U.S. Supreme Court noted in a 1987 ruling: “In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”

In March, the U.S. Department of Justice issued an advisory to state and local courts that said they “must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release.”

Legislative action

The position taken today is designed to help California get a fair and effective system for pre-trial detention, Herrera said, a system that assesses risk and detains only those who are either a danger to others or unlikely to show up in court if freed.

“I am calling on our partners in the state Legislature to work quickly to reform our state bail system and set up one based on risk-assessment rather than ability to pay,” Herrera said. “Assemblymember Rob Bonta, D-Oakland, has made reforming our bail system a priority, and we are looking forward to his continued leadership in the Legislature on this issue.”

In the meantime, San Francisco has been working within the existing laws to provide courts with improved risk assessments to facilitate the release of arrestees on their own recognizance if they are unlikely to flee or commit a crime.

The program builds on one that has been in place for years. According to the San Francisco Sheriff’s Department, roughly half of all arrestees qualify for the “own recognizance” program. Others are ineligible because of their criminal history, the type of crime they’re accused of, or failing to appear in court previously.

On average, 93 percent of people released through the program show up in court, the Sheriff’s Department has found.

On average, 93 percent of people released through the “own recognizance” program show up in court, the Sheriff’s Department has found.

The case is Buffin et al v. City and County of San Francisco et al, U.S. District Court California Northern District (Oakland), Case No. 4:15-cv-04959-YGR, filed Oct. 28, 2015. Additional documentation from the case is available on the city attorney’s website, at http://www.sfcityattorney.org.

John Coté, communications director for the City Attorney’s Office, can be reached at John.Cote@sfgov.org. Bay View staff contributed to this story.